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[A.M. OCA IPI No. 04-2118-RTJ.� July 27, 2005-A]

RE: BGS REALTY vs. BASILLIA

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated JUL 27 2005-A.

A.M. OCA IPI No. 04-2118-RTJ (Re: BGS Realty Inc. represented by Miguel Angelo S. Silverio vs. Judge Henry B. Basillia, Presiding Judge, Regional Trial Court-Branch 3, Legaspi City.)

Considering the Report of the Office of the Court Administrator, to wit:

Complaint DATED October 18, 2004 [with enclosures], of BGS Realty, Inc. through its representative, Miguel Angelo Silverio, charging respondent Judge Henry B. Basillia with "Gross Ignorance of the Law, Not Respecting the Rule of Law and Decision of the Court of Appeals and Violations of Rule 1.01 and Rule 1.02 of Code of Judicial Conduct."

Complainant avers that it is the respondent in Civil Case No. 10401 which is a petition for issuance of Writ of Prohibition, filed by one Demetrio Aydalla, et al. and has for its subject the Special Order of Demolition issued by the Municipal Trial Court of Daraga, Albay in an ejectment case docketed as Civil Case No. 1022 filed by herein complainant, BGS Realty against the petitioners, Demetrio Aydalla, et al. Complainant claims that the respondent was biased in favor of the petitioners as he, in ordering the issuance of the Temporary Restraining Order [TRO], considered only the evidence presented by the petitioners. This prompted them to file a Motion for Inhibition in the said case which was denied however by the respondent.

Complainant claims that respondent's acts of granting the TRO as well as his refusal to inhibit himself in hearing the petition were all in violation and disregard of the Decision of the MTC, Daraga, Albay in Civil Case No. 1022, involving the same parties and the same issues, which decision was affirmed by both Regional Trial Court, Legaspi City, Branch 1, and the Court of Appeals in CA-G.R. SP No. 74775. Complainant likewise asserts that respondent also did not respect the orders of DAR Region V which favor their claims against the petitioners.

Further, complainant contends that "the respondent violated the provisions of the Rules of Court regarding hierarchy of courts because a RTC cannot reverse, modify, stop or restrain the implementation of the final decision of the Court of Appeals"; that "respondent is liable for ignorance of the law because he violated the due process clause of the constitution when he acted as biased and partial judge favoring the petitioners" and that he "violated Rule 1.01 and Rule 1.02 of the Code of Judicial Conduct for being partial, biased and favoring the petitioners in Civil Case No. 10401."

COMMENT dated November 22, 2004, of Judge Henry B. Basillia where he avers that the instant administrative complaint was instituted by the complainant upon the advice of its counsel, Atty. Expedite P. Nebres and purely for harassment, having been filed immediately after he denied the Motion for Inhibition and granted the TRO. To preserve the integrity of the court, however, he nonetheless inhibited himself from hearing Civil Case No. 10401.

He explains that the issuance of the TRO in question was proper in order to hold back the enforcement of a void order for lack of jurisdiction citing as basis the pronouncement of the Supreme Court in Leonor vs. CA [256 SCRA 69 (1996)] that a void judgment for want of jurisdiction is said to be "a lawless thing which can be treated as an outlaw and slain at sight or ignored wherever and whenever it exhibits its head. "

Respondent brands as a lie the allegation of bias by the complainant which, allegedly, the former has shown and committed during the hearing for the issuance of a Temporary Restraining Order, considering that the latter was not present thereat. Further, he claims that contrary to complainant's allegations he faithfully observed and even promoted the following rules, law and jurisprudence: 1] R.A. 6657, Sec. 50; 2] E.O. 129-A Sec. 13; 3] Rule 11 Section 1, 2003 DARAB Rules of Procedure, formerly Rule 11, Sec. 1[g], 1994 DARAB Rules of Procedure; 4] Rule 1, Sec. 2, DAR Admin. Order No. 06-00; 5] DAR vs. Cuenca, et al., G.R. No. 151412, September 23, 2004.

He further asserts that it is not proper for a lawyer whenever a judgment of the court is adverse to his client to ask for the inhibition of the judge with no basis at all and if not granted to advise or allow his client to file an administrative charge against the judge.

REPLY dated November 30, 2004 of complainant BGS Realty Inc. Complainant explains that the present complaint was filed because of the refusal of respondent to inhibit himself despite the motion for inhibition filed by its legal counsel and to respect the final orders of the Department of Agrarian Reform Regional Director of Region V involving the same properties. Complainant likewise asserts that they filed the complaint "for the purpose of protecting their rights and interests and to stop respondent's abuse of power and authority which prejudice and affect the rights and interests of the complainant and other litigants and for the respondent judge to respect and observe the rule of law and to observe justice and fairness in resolving and deciding cases."

EVALUATION: The present administrative complaint must fail for lack of merit.

A perusal of the records of the case would readily show that the acts of respondent Judge being complained of, upon which the present administrative complaint is mainly based, refer to judicial issues which are not proper subjects of an administrative proceeding. Time and again this Court has ruled that administrative proceeding is not a substitute for judicial remedies. In the case of Flores vs. Abesamis [275 SCRA 302 (1997)], this Court has held that it is only after the available judicial remedies have been exhausted and the appellate tribunals have spoken with finality that the door to an inquiry into the criminal, civil or administrative liability of judges concerned may be said to have been opened or closed. This Court in the same case has also prescribed those remedies, thus:

"As everyone knows, the law provides ample judicial remedies against errors or irregularities being committed by the trial court in the exercise of its jurisdiction. The ordinary remedies against errors or irregularities which may be regarded as normal in nature [i.e.; error in appreciation or admission of evidence or in application or in construction or application of procedural or substantive law or legal principle] include a motion for reconsideration, or after rendition of a judgment of final order a motion for new trial and appeal. The extraordinary in character [i.e., whimsical, capricious, despotic exercise of power or neglect of duty, etc.] are inter alia special civil actions of certiorari, prohibition or mandamus or a motion for inhibition, a petition for change of venue as the case may be."

In the instant complaint, complainant, instead of filing an administrative case, could have availed of any of the above cited remedies whichever is applicable, to attain its purpose of enjoining the respondent from further acting on the petition.

As to the respondent's alleged violation of Rule 1.01 and Rule 1.02 of the Code of Judicial Conduct for respondent's alleged bias and partiality, the same must fail since complainant failed to cite particular or specific acts of the respondent that would substantiate its allegation, clearly and convincingly enough to merit the attention of this Office. It is settled that mere suspicion that a judge was partial to a party is not enough as there should be adequate evidence to prove the charge [Zamudio vs. Pe�as, Jr., 286 SCRA 88 (1998)].

With regard to the charge of gross ignorance of the law against the respondent, the same cannot also be sustained as complainant failed to allege that respondent's acts were corrupt or inspired by an intention to violate the law or were in persistent disregard of well known rules or that respondent was motivated by bad faith, malice, revenge or some other similar motive.

RECOMMENDATION: Respectfully submitted for the consideration of the Honorable Court is our recommendation that the instant administrative complaint be DISMISSED for lack of merit.

and finding the evaluation and recommendation thereon to be in accord with law and the facts of the case, the Court hereby approves and adopts the same.

ACCORDINGLY, the administrative complaint against Judge Henry B. Basillia is hereby DISMISSED.

SO ORDERED.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court

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